The Future Is Uncertain For the Patient Protection and Affordable Care Act

by John W. Kaveney

With the election of Donald Trump to the office of President of the United States, Republicans and their supporters began implementing plans for the repeal and replacement of President Obama’s signature legislation, the Patient Protection and Affordable Care Act (“ACA”). President-Elect Trump’s selection of Representative Tom Price (R-GA) to the position of Secretary of Health and Human Services signaled the next step in those efforts.

Dr. Price, an orthopedic surgeon, has been a regular voice in opposition to the ACA and many in Congress and the media see this selection as confirmation that every effort will be made to replace the ACA. Several Democrats have already come forth indicating they plan to challenge Dr. Price’s selection as they see any threat to the ACA as a threat to thousands of patients that have only received insurance as a result of the ACA.

While a repeal of the ACA is still not guaranteed and many are already challenging whether it could even be effectuated without significant impacts on the health insurance industry and millions of Americans, it is nevertheless important to understand what a replacement program might look like. Dr. Price has previously submitted one of the more detailed Republican plans to replace the ACA. His previously proposed legislation is known as the Empowering Patients First Act.

Unlike the ACA, Dr. Price’s legislation seeks to minimize government’s role in health care. The following are five key elements of Dr. Price’s prior proposal:

  1. Fixed tax credits that rise with age so that patients can purchase their own insurance on the private market, including across state lines. The tax credits would not fluctuate based on income.
  2. Expand health savings accounts to further incentivize patients to contribute to such accounts to pay co-pays and deductibles.
  3. Preexisting conditions would continue to be excluded as a basis to deny coverage but only if the patient has had continuous insurance for eighteen months prior to selecting a new policy. If not, coverage might be denied for up to eighteen months under the new policy.
  4. Limiting the amount of money companies can deduct from their taxes for employee health insurance expenses.
  5. States would be paid federal funds to set up high risk pools to assist those with preexisting conditions that cannot afford insurance on the private market.

While Dr. Price has indicated his willingness to negotiate and compromise on what the ultimate replacement looks like, it remains to be seen how flexible he and the Republicans will be on a substitute for the ACA. Regardless of the final form, one cannot forget that as Secretary of HHS, Dr. Price would ultimately control the authoring of the enabling regulations to implement the new legislation.

It is anticipated that during President-Elect Trump’s first 100 days in office this issue will be addressed.